The John Edwards Case

Because I think the John Edwards case will present important issues involving crime and consequences (to coin a phrase), I expect to be following it on this blog in some detail. It is also near and dear to my heart in a number of ways. I got my undergraduate degree at the University of North Carolina, where Edwards got his law degree. He was a courtroom lawyer, as was I, although he made a great deal more money. And his challenge to the indictment -- a virtual certainty to be undertaken -- will be decided in the US Court of Appeals for the Fourth Circuit, where I argued more than 100 criminal cases, representing the United States.

So let me make some observations.

First, a copy of the indictment is here. It contains six counts, including campaign finance, conspiracy and false statements charges.

Second, it is my understanding that some of those working on the case were from the Public Integrity Section of Main Justice. Readers might remember that the last time Public Integrity was in the news was in connection with its botched and incomplete disclosure of potentially exculpatory evidence in the Ted Stevens trial. The Department's mishandling of required discovery led it to dismiss the indictment altogether (even though, in my opinion, Stevens was factually guilty and would probably have been convicted).

Third, Edwards is being represented by the virtual Mr. Big of Democratic lawyers, Gregory Craig, former White House Counsel for President Obama. Craig has had an amazing career, having represented clients from John Hinkley to Goldman Sachs.

One of the things I would love to know, but probably never will, is whether at some point Craig telephoned Holder to try to get the investigation squelched. My guess is that he was sorely tempted, but ultimately would have refrained. Such a call, he would have realized, would probably have been counter-productive.

It should be borne in mind that one of the most troublesome questions asked of Holder during his confirmation hearing to become AG related to his handling of the Marc Rich pardon, which was issued by President Clinton on his last full day in office. Rich's principal lobbyist was Jack Quinn, a former Clinton White House Counsel. One of the questions Holder never satisfactorily answered was why he, then Deputy AG, had talked to Quinn so many times about Rich, see, e.g., this Salon article. This would make Holder very ill-at ease in talking to Craig about Edwards, and Craig would have realized this fact.

Fourth, some have said that the principal charge in the Edwards indictment is pushing the envelope of campaign finance law. The defense view is that the gifts to Edwards were not campaign contributions, and were instead personal generosity. If that is so, Edwards was never required to report them.

This is indeed an unusual campaign finance case, but if that's the theory the defense is banking on, they are likely in for an unpleasant surprise. The idea that even the wealthiest of donors would fork over this kind of money (close to a million dollars) other than to keep Edwards' campaign viable (and that's all that's required under the statute) is somewhere between far-fetched and preposterous.

As an aside, I can't help remarking here that Edwards' taking this money, whether to keep the affair from his wife, or to keep it from the public (and thus keep his political career alive), is another indication of Edwards' venality. The man is a multimillionaire, having made a fortune as a plaintiffs' trial lawyer. He could easily have afforded whatever it took to finance this coverup. But when you have his sense of power and entitlement, it must seem like you should never be called upon to pay your own way for anything.

Finally, it's hard to know whether this case will go to trial, or whether Edwards will plead guilty to reduced charges. My bet is that both Edwards and Craig view themselves (not without reason) as superstar lawyers who can beat any government lackey in a courtroom. On the other hand, the stakes are awfully high. Does Edwards really want the underlying facts to be played out on the nightly news? At some point, his daughter, whom he has now at least acknowledged, would be able to get ahold of the trial record. I cannot imagine that even John Edwards would want to inflict that kind of pain on her.

On the other hand, the stakes are high for DOJ as well. In light of the Ted Stevens disaster, and with pre-existing and credible charges swirling that DOJ is already politicized, can the Department really afford to settle the case short of a jury verdict?

There is only one Democrat who can really be happy today about the blanket news coverage this case is generating, and that is............Rep. Anthony "Is That a Picture of You?" Wiener.

Edwards' and Craig's arrogance might tempt them to take it to trial, but I think it makes a terrible jury case. The defendant is unsympathetic (a rich trial lawyer), and the underlying facts are worse than merely unsympathetic. They will make the jury look at everything Edwards did in a dim light. In addition, Edwards' defense will be technical, and technical defenses generally are not a big seller with juries. Such a defense has particular problems here: It's just hard for a guy who made millions practicing law to claim he didn't really understand.....law.

I would be interested in knowing your experience. Mine tells me that defendants are incredibly self-justifying, and continue to think they're going to bamboozle the jury just as they have so often succeeded in bamboozling many others (this is true in spades of Edwards). Usually they get an unpleasant surprise.

I am no fan of the SOB, and perhaps this is poetic justice for the guy who ruined doctors' careers with bogus evidence, but am I alone in having problems with this prosecution? At bottom, it seems to me that this prosecution stretches the meaning of personal expenses and campaign expenditures beyond ordinary meaning. Yes, hiding the baby and the mistress helped Edwards' campaign, but does that make it a campaign expense? And paying Rielle's expenses--how are they Edwards' expenses? And if they are Edwards' expenses, what's the tax treatment? Theoretically, if these are campaign expenditures, then they're not really gifts, so they should be income to Edwards, right?

Edwards is undoubtedly an unsympathetic figure but, as federalist notes, his representatives may be able to tap into what some believe to be a growing unease with over-reaching by federal prosecutors and law enforcement in general.

In Philadelphia, the local court system is very weak and has long been run by the defense bar. Many defendants who were able to elude justice locally finally received their comeuppence when various joint task force units referred their case to federal court.

I recall the ashen faces of both defendant and attorney when they finally realized that the tricks of the trade that worked so well locally would not fly in federal court.